Summary

Sudan’s transitional government has issued a range of criminal law reforms that address gender and religious freedoms. This briefing explores the motivations for reform, six issues and seven suggested solutions for human rights development in Sudan.
The laws are motivated by the government’s attempts to align Sudan’s criminal laws with the 2019 Constitutional Declaration, and resolve conflict with rebel groups.
However, six key issues have been identified. Cultural norms remain an implementation obstacle. In addition, some of the legal changes are not as comprehensive as they have been reported to be, whereas others are argued to disproportionately criminalise the poor. The laws have been criticised by both Islamists, as well as activists who welcome the laws but question their timing. Furthermore, the security apparatus continues to utilise Sudan’s legal system to restrict freedom of speech.
Nonetheless, the seven suggested solutions for a Sudanese legal system that adequately protects human rights include: repealing laws against freedom of expression, ratifying more laws against torture and discrimination against women, challenging cultural practices, independent investigations of human rights violations, security reforms and civil society’s engagement in future legal reforms.

1. Sudan’s criminal law reforms

“In a decisive break from hard-line policies under the former Islamist government,” Sudan is to cancel prohibitions against religious conversion from Islam, permit non-Muslims to consume alcohol, and end the requirement of women needing a permit from male family members to travel with their children. Female Genital Mutilation (FGM) will also be banned, with anyone found guilty of performing FGM sentenced to up to three years in prison, a practice that Sudan’s justice ministry says “degrades the dignity of women” (Guardian, 12 July). In addition, Sudan will abolish the use of public flogging as a punishment (New York Times, 13 July).

Prime Minister Abdalla Hamdok said “legal reviews and amendments will continue until we address all distortions in the legal systems in Sudan,” (AP, July 10) with Justice Minister Nasredeen Abdelbari vowing to “drop all the laws violating the human rights in Sudan” (BBC, 12 July).

2. Motivations for legal reforms

Sudan’s legal reforms are motivated by attempts to meet constitutional requirements, and in the case of amendments to Sudan’s apostasy law, conflict resolution.

I. Constitution

In clarifying the political motivations for Sudan’s wide-reaching criminal law reforms, Abdelbari stressed “the urgent need to establish freedoms and ensure the Rule of Law without discrimination,” stating that the amendments aim to align Sudan’s criminal laws with the 2019 Constitutional Declaration (Radio Dabanga, 13 July).

Indeed, Ahmed Soliman, a research fellow at British foreign-policy research institute Chatham House, said that the legal reforms indicate that the transitional government has “demonstrated its intent to keep equal citizenship at the forefront of the political transition, including by addressing issues of gender and religious freedoms” (New York Times, 13 July).

II. Conflict Resolution

In the context of Sudan’s path to conflict resolution, wider religious freedoms are crucial. Indeed, Abdelbari stated that the amendments are linked to “agreements made with the rebel movements during the peace talks in Juba” (Radio Dabanga, 13 July).

This is particularly the case with regards to changes to Sudan’s apostasy law, of which Abdelbari said: the “declaration that someone was an apostate was a threat to the security and safety of society.” Abdelbari added: “we are keen to demolish any kind of discrimination that was enacted by the old regime and to move toward equality of citizenship and a democratic transformation” (BBC, 12 July).

Providing contextual details on the link between religious freedoms and Sudan’s internal conflicts, Reuters (12 July) note that former President Jaafar Nimeiri’s introduction of Islamic law in 1983 was a “major catalyst for a 22-year-long war between Sudan’s Muslim north and the mainly Christian south that led in 2011 to South Sudan’s secession”. Since then, Sudanese Christians live mainly in Khartoum and in the Nuba Mountains near the South Sudan border, with some Sudanese following “traditional” African beliefs. Thus, Abdelbari said the government is trying to safeguard the rights of the country's non-Muslims, who make up an estimated 3% of the population (BBC, 12 July).

It is also worth noting that the rebel group which controls the most territory in Sudan – across the Nuba Mountains, South Kordofan and the Blue Nile State - the Sudan People’s Liberation Movement-North (SPLM-N) faction of Abdelaziz El-Hilu - vows to fight for self-determination unless secularism is adopted nationwide, believing that such a measure is the best way to end marginalisation in Sudan (Radio Dabanga, 18 December 2019).

SPLM-N El-Hilu is not a part of the rebel coalition participating in the Juba peace talks, citing the omission of the secularism question from the negotiation agenda. Thus, it is possible that the transitional government’s commitment to increased religious freedoms in Sudan may be the olive branch that brings El-Hilu’s faction to the negotiation table.

3. Issues

Sudan’s criminal law reforms have expectedly encountered opposition from Islamist groups. The details of the laws have been misreported, with Abdelbari clarifying that apostasy has not been decriminalised, and that alcohol may still be restricted. The impact of the laws have also been argued to be limited by their: disproportionate criminalisation of the poor, cultural practices impeding implementation, and timing. Moreover, the Sudanese Armed Forces continues to use the legal system to restrict freedom of speech.

I. Islamist Opposition

Sudan’s legal reforms sparked opposition from Islamist groups, which Prime Minister Abdalla Hamdok attempted to diffuse.

Radio Dabanga (19 July) reported that the amendments to Sudan’s criminal laws triggered “limited” demonstrations, after “hard-liner” imams threatened to “overwhelm” Khartoum with protests against the abolishment of Islamic laws against apostasy and alcohol. However, authorities pre-emptively closed bridges and roads.

A delegation of religious group Ansar al-Sunnah al-Mohamediyah group met with Hamdok and Minister of Religious Affairs Nasreldin Mofreh to discuss the amendments, after which Hamdok reportedly asserted “the government's eagerness to preserve the heritage and values of Islam” and stressed their “respect for the Islamic principles without prejudice.”

II. Legal reforms misreported

Although various media outlets have reported that Sudan has “decriminalised” apostasy, Justice Minister Abdelbari clarified that apostasy has merely been abolished as a capital offence. Abdelbari said that apostasy continues to be criminalised, but demands that prosecutors protect those accused of it (Radio Dabanga, 13 July).

Indeed, Magid el-Gizouli, an independent political analyst and academic fellow at the Rift Valley Institute, suggested that amendments to the apostasy law are a “marginal event” given the infrequency of public declarations of a change of religion (Deutsche Welle, 14 July).

Furthermore, Abdelbari noted the prospect of alcohol being restricted again “if that is what the Sudanese want,” stating that issues around the alcohol trade in Sudan “will be left to discussions about Sudan’s future constitution” (Radio Dabanga, 13 July).

Thus, El-Gizouli argues that the details of the legal reforms are “inconvenient” to Sudan’s western donors, stating that the government is simply “echoing” what western donors like to hear (Deutsche Welle, 14 July).

III. Criminalising the poor

Deutsche Welle’s article on Sudan’s criminal law reforms – titled Sudan’s liberalization for the chosen few (14 July) – centred scepticism expressed by el-Gizouli, who said that while changes are welcome “for the lifestyle of a certain segment of the population in Khartoum,” they do not benefit Sudan’s poor and risk polarising Sudanese society.

El-Gizouli argued that the FGM ban risks “criminalising the poor” citing a lack of clarity as to who will be prosecuted. On laws ending women requiring authorisation from males to travel abroad, El-Gizouli claimed that most women affected by such issues “don't travel through airports”. Finally, el-Gizouli added that laws making prostitution punishable only if occurring in a brothel fail to protect impoverished women forced into prostitution, and do not apply to wealthy clients who have their own property.

IV. Cultural

Furthermore, el-Gizouli questioned whether legal means are best in fighting “cultural practice”. Indeed, Ola Diab, editor of 500 Words Magazine, told the Guardian (July 16) that the implementation of the new laws is a “challenge,” citing social resistance to reforms such as the FGM ban.

V. Timing

Nahid Toubia, a leading Sudanese women’s health rights activist specialising in ending FGM, questioned the timing of the FGM ratification, saying the coronavirus lockdown limits activists’ ability to mobilise awareness campaigns or train police. Toubia said: “currently there are fuel shortages and long daily power cuts as well as rising infections of Covid-19… communication and people’s mobility are severely hampered. These are not the conditions where advocacy for legislating against FGM is a priority or even possible” (AP, July 10).

VI. Legal system restricts freedom of speech

Within days of the announcement of the legal changes, the Sudanese Armed Forces (SAF) said it started legal action against activists and journalists who have “insulted” the military.

SAF said legal action would be taken against activists, journalists and others both inside and outside Sudan, adding that that it “took this step after systematic insults and accusations crossed the bounds of patience [which are] part of a plan targeting [Sudan’s] army and security system”. Claiming that its actions are in accordance with recently passed laws, SAF denied that it is attempting to “restrict freedoms” or obstruct the investigation into the June 3 2019 Khartoum Massacre (Reuters, 18 July).

Within three days, Radio Dabanga (21 July) reported that the Sudanese Journalists Network (SJN) strongly condemned a verbal attack on journalist Adil Kolor by army officer Major General Amin Ismail.

In a televised discussion about Sudan’s military dealing with weapons and explosives during Omar al-Bashir’s regime, Kolor spoke about the 1998 US missile attack on al-Shifa pharmaceutical factory in Bahri, and alleged Israeli airstrikes between 2009-2014 targeting Iranian arms smuggled through Sudan to Gaza. Accusing Kolor of terrorism and warning him to not reveal such military details again, Ismail said an official complaint would be filed against Kolor concerning the disclosure of military secrets.

The SJN said “these threats are not different from the targeting of journalists [during al-Bashir’s regime]”. The SJN also confirmed complaints by the Sudanese Armed Forces against journalists and activists on the basis of “the defective Information Law” and “an attack on the civil freedoms in the country”.

4. Solutions

The solutions for a Sudanese legal system that adequately protects human rights suggested by analysts, rights organisations and Abdelbari are: (I) repealing laws against freedom of expression, (II) ratifying more laws against torture and (III) laws to protect women, (IV) challenging cultural practices, (V) independent investigations of human rights violations, (VI) security reforms and (VII) civil society’s engagement in future legal reforms.

I. Repealing laws against freedom of expression

In response to the military’s threats to sue journalists, Mohamed Osman, Assistant Researcher at Human Rights Watch (24 July), called for Sudanese leaders to demonstrate their commitment to the rights and freedoms enshrined in the constitutional declaration by “taking quick steps” to prevent state agents from using “problematic laws” that silence dissent. Osman identified two laws in particular.

Firstly, the “troublesome” Cybercrimes Act invoked by an army spokesperson, described as “an overly broad law” introduced in 2007 that “has been used by the former regime to target online critics.” Osman adds that the Cybercrimes Act criminalises the “vague” concept of the “spread of false news” and publication of “indecent materials,” with recent amendments increasing prison sentences.

Secondly, Osman noted that the army threatens to use the Publication and Newspapers Act and “crimes against the state” provisions in the Criminal Act of 1991, which “were often used by the former regime to harass real or perceived opponents.”

II. Laws against torture

While Human Rights Watch (16 July) note that Sudan’s new laws ban the “infliction of torture”, forced confessions, and human rights violations, Human Rights Watch (HRW) also call for Sudan to also ratify key international treaties like the conventions against torture.

Indeed, Charlie Loudon, anti-torture charity Redress’s international legal adviser, suggests that the government to continue making domestic law and policy reforms until systematic torture is eradicated from Sudan, and justice and reparations are fully realised for victims (Guardian, 16 July).

The Sudan-based African Centre for Justice and Peace Studies (ACJPS, 14 July) also call for Sudan to implement reforms to laws and policies that have allowed torture to continue and perpetrators to operate with impunity. ACJPS specifically suggest that Sudan does more

to realise the right to justice and reparations for torture victims, with specific policy recommendations including: abolishing the system of immunities that ensures that perpetrators of torture “remain above the law,” and replacing it with a system of remedies for victims.

In addition, ACJPS (16 July) call for the Evidence Act to be amended to repeal provisions permitting judges to admit confessions obtained through torture, as well as the establishment of a transitional justice mechanism that guarantees torture victims full access to justice, reparation, rehabilitation and reconciliation. Similarly, ACJPS also recommend improved conditions of detention and guaranteed access to lawyers and doctors for detained individuals

III. Laws to protect women

HRW (16 July) call for the reform of personal status laws that discriminate against women and girls, with more progress needed to eliminate all forms of discrimination against women.

Journalist Ola Diab provided specific laws that need to change, including those that have seen rape victims charged with adultery and women in mixed-sex settings accused of prostitution” (Guardian, 16 July).

IV. Challenging cultural practices

With Diab also noting social resistance to reforms such as the FGM ban, Chatham House research fellow Ahmed Soliman argued that more needs to be done to change long-held cultural practices, citing “division” over the reforms and a “strong backlash by conservative religious and political figures who see the changes as an attack on Islam and morality” (New York Times, 13 July).

V. Independent investigations of human rights violations

Noting the “little progress” on accountability for the June 3 2019 Khartoum massacre, HRW (23 June) call for Sudanese authorities to ensure that attorney general Taj el-Sir el-Hibr has political backing, alongside sufficient resources and technical support for the investigating committee’s work, ensuring that it can “investigate and prosecute up the chain of command those most responsible for planning and ordering the dispersal operation.”

Broadly, ACJPS (16 July) call for assurances that the investigation committees established to investigate human rights violations are independent, impartial and operate transparently. However, Reuters (18 July) note that Sudanese activists accuse the Sudanese Armed Forces of blocking investigations into the June 3 2019 Khartoum Massacre, with “witnesses saying that a powerful paramilitary force played a leading role in the raid.”

VI. Security sector reform

HRW (23 June) call for a “comprehensive” plan for reforming the army, Rapid Support Forces (RSF), police, auxiliary forces, and the sprawling National Intelligence and Security agency, (NISS, renamed GIS). HRW emphasise the need to set up accountability systems in the forces and put them under civilian oversight. HRW also call for authorities to investigate alleged connections between the security forces and a network of state-owned companies, controlled by the military and security apparatus.

In addition, Redress’ international legal adviser Charlie Loudon suggested amendments to the internal policies of state security agencies, adding training would be “crucial(Guardian, 16 July).

ACJPS’ (16 July) suggestions for security sector reform include the repeal of provisions granting immunity from prosecution for human rights violations committed by state security officials. ACJPS also call for the closure of National Intelligence and Security Service (NISS) detention centres and NISS-controlled sections of prisons.

VII. Engagement with civil society in the legal reform process

With Justice Minister Abdelbari (Radio Dabanga, 13 July) calling on Sudanese people and political parties to broadly discuss “challenging” old laws ahead of Sudan’s future constitution, ACJPS (14 July) conclude that further reforms should be the result of a consultative process that involves civil society and victims’ groups.

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